Lesa Curtis of Westchester, N.Y., right, who is in favor of agency fees and a former president of her union, rallies outside the Supreme Court on Monday as the court hears arguments in the Friedrichs v. California Teachers Association case. (Jacquelyn Martin/AP)

By Robert Barnes January 11 at 12:19 PM

A majority of the Supreme Court seemed ready Monday to agree with a group of California teachers who say it violates their First Amendment rights to be forced to pay dues to the state's teachers union.

A 40-year-old precedent allows states to permit unions to collect a so-called agency fee from non-members to support collective bargaining activities, and California is one of about 20 states that allow it.

Public employee unions say such fees are essential to their well-being, and that challenges to the arrangement are born of conservative efforts to weaken their strength. Liberal justices during an hour and a half of oral arguments said the challengers had not supplied the kind of evidence required for the court to overturn a precedent.

But the court's conservative majority in 2012 and 2014 expressed grave doubts about the 1977 decision in Abood v. Detroit Board of Education, and there seemed little reason after the oral arguments for unions to think the majority was not ready to now finish it off.

[Justices agree to hear dispute over union fees, reapportionment]

Justice Antonin Scalia in the past has expressed sympathy for the view that the unions needed to collect the fees to prevent "free riders" -- those who benefit from the agreements unions reach with government employers but do not pay for the union's costs.

But he did not pose any questions Monday that favored the union's view and said he doubted whether such fees were necessary to union survival.

Justice Anthony M. Kennedy, the member most likely on other issues to side with the court's four consistent liberals to form a majority, seemed hostile to the union's arguments.

In the public sphere, he said, negotiations between unions and government could not be separated from controversial public policy questions such as merit pay for teachers or layoff policies that rely on seniority rather than teacher performance.

Those teachers who disagree with the union position should not have to subsidize views with which they disagree, Kennedy said, adding that the current system creates "a whole class of persons whose speech has been silenced."

[Two teachers explain why they want to take down their union]

Justice Elena Kagan defended the status quo, and said the challengers "come here with a heavy burden" by asking the court to overturn a precedent that has been in place for four decades and on which both government and unions have come to rely.

But it seemed after arguments that the most the unions could hope for was a reprieve -- perhaps remanding the case back for additional fact-finding on exactly the impact unions would feel if agency fees were not required.

The case does not affect private employers, and about 25 states do not require such payments to public employee unions. Federal worker unions also are not allowed agency fees, although Justice Ruth Bader Ginsburg noted that federal workers may not negotiate for pay raises.

The unions say such fees are fair because they are required to negotiate on behalf of all workers, not just their own members.

Rebecca Friedrichs and other California teachers have given the majority a clear chance to overrule the precedent. "Every individual should have the right to decide" which organization she supports, said Friedrichs, a third-grade teacher from Anaheim whose case is championed by conservative legal organizations.

Being excused from paying for the union's political activities is not enough, she said. Public-employee union negotiations necessarily affect public policy decisions on government spending and taxes, and issues such as seniority and educational policy.

Labor leaders call the challenge a "radical" attack on public employee unions, one of the strongest segments of the organized labor movement. Laura Juran, a lawyer for the California Teachers Association, said teachers who disagree with the union's views "are perfectly free to speak as citizens" to try to influence government decisions.

The partisan significance of the case is clear. Public employee unions have become a major player in Democratic politics, generating campaign contributions and on-the-ground support for candidates. At the same time, disputes between the unions and Republican governors have become frequent and bitter.

In both that and the current case, the Obama administration intervened on behalf of the unions and argued against overturning the precedent.

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